Sunday, 13 January 2013

Israel, Palestine and the International Criminal Court

There’s a fairly widespread feeling that one of the Palestinian Authority’s (PA’s) main motives in seeking an upgrade of its status at the UN recently, was to enable it to haul Israeli officials before the International Criminal Court (ICC) on charges of war crimes committed during Israel’s first – and possibly also its second − Gaza incursion.

Throughout the three weeks of Operation Cast Lead the broadcast media was out in force, capturing the horrors of war for the world’s television sets. Soon charges were being levelled against the Israel Defense Forces (IDF) from the usual sources of “disproportionate” military activity. It was not long before they turned into accusations of war crimes. On the day after hostilities ceased − 22 January 2009 − the PA submitted a declaration to the International Criminal Court accepting its jurisdiction for “acts committed on the territory of Palestine”.

This initiative was seen by world opinion as the first stage in a bid to indict Israeli officials for actions committed during Operation Cast Lead. It failed on purely technical grounds.

The powers of the ICC, which came into being under the Rome Statute on 1 July 2002, are constrained in a number of ways: It has no jurisdiction in respect of crimes committed before the ICC itself came into existence; its jurisdiction can be activated only by sovereign states; it can investigate crimes only in states that have signed the Rome Statute. Any state that is not party to the Statute can accept the jurisdiction of the ICC with respect to crimes committed on its territory. This is the crack through which the PA sought to squeeze itself. But the PA was not a sovereign state, and having considered its request for three years, in April 2012 the ICC prosecutor rejected it and referred the issue back to the UN Secretary General.

However, on 29 November 2012 the UN General Assembly voted in favour of recognizing Palestine as a state with observer status, even though a non-member of the UN. It is generally agreed − although not, perhaps, by the PA − that this resolution had no power to create a Palestinian state. Even so, it may cause the newly appointed ICC prosecutor, Fatou Bensouda of Gambia, to reconsider her predecessor’s opinion.

Why? Because in rejecting the PA’s application, her predecessor, Luis Moreno-Ocampo, cited the UN General Assembly as the final authority for deciding who a “state” is for the purposes of filing a case with the ICC. Moreover, he indicated that his decision was influenced by the fact that the PA had only “observer” status within the UN – implying that if it had been a “non-member observer state” his decision might have gone the other way.

So it remains a possibility that the ICC will agree to accept the PA’s request to submit itself to the jurisdiction of the court. If so, could the PA in fact initiate a criminal action against Israel?

As far as Operation Cast Lead is concerned, the two external inquiries each originally castigated Israel severely, and each subsequently had its main charges substantially modified.

The board of inquiry set up by UN Secretary General, Ban Ki-moon, ignored the eight years of attacks against Israel and Hamas’s methods of armed operation which put Palestinian civilians at risk, and found the IDF was responsible for death, injuries and damage in seven of the nine incidents it investigated. In his response, sent to the UN Security Council, Ban Ki-moon made it clear that he took a different view. He criticized the firing of rockets at Israeli towns, and praised the coordination between the IDF and the UN during Operation Cast Lead and during the inquiry itself.

The UN-appointed Fact Finding Mission led by South African jurist Richard Goldstone, was set up to investigate alleged violations of human rights during the Gaza War. Its report accused both the IDF and the Palestinian militants of war crimes and possible crimes against humanity. Lo and behold, on 1 April 2011 Goldstone published a personal retraction in The Washington Post, noting that subsequent investigations "indicate that civilians were not intentionally targeted as a matter of policy". He concluded: "If I had known then what I know now, the Goldstone Report would have been a different document."

All of which would seem to cut the ground from beneath the PA’s feet, should it seriously consider hauling Israel before the ICC in respect of Operation Cast Lead. As regards Israel’s latest sharp lesson to Hamas, Pillar of Defense, the operation and the outcome resulted generally in a more even-handed account in the world’s media of the initial provocation and the subsequent Israeli reaction. There seems little of substance to place before the ICC.

Assuming, however, that the PA persists, and that the ICC prosecutor accepts it as a competent party, two questions remain. What are its chances of success, and is there anything Israel could do in response?

As regards the former, the ground rules of the Rome Statute are explicit: “If a state becomes a party to this statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State….” The PA’s declaration was made on the day after Operation Cast Lead ended. It seems clear that the ICC could not consider alleged crimes committed before that day.

Is there any counter action Israel could take? If Palestine is eventually considered by the ICC to be a state, Palestinians could be indicted for crimes committed on their own soil which, let us recall, the UN General Assembly assumed to include Gaza. The rockets fired indiscriminately from Gaza at Israel’s civilian population centres almost certainly constitute crimes against humanity. Israel and the United States have withdrawn from the Rome Statute, but nothing in the Statute says that a state referring charges to a prosecutor must be a party to the treaty.

The PA needs to beware. If it persists in pursuing its action, it may be opening a Pandora’s box.

Published in the on-line Jerusalem Post magazine, 14 January 2013:

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